On the record
Every employer has the right to employ someone of their own choosing, based on a person’s suitability for a job. Employers best understand the main requirements of that job and what qualities are needed in an employee to meet those requirements. Yet it is also in employers’ interests to treat job applicants and employees fairly and in accordance with legal obligations.
Some employers are unaware that discrimination in employment on the ground of criminal record can be a basis for a complaint of discrimination under the Human Rights and Equal Opportunity Commission Act 1986 and may also be unlawful under state and territory anti-discrimination laws. Others are aware of these responsibilities but are unsure of their practical application. These Guidelines aim to assist employers and others to eliminate discrimination against people with criminal records and assist employers meet their obligations under anti-discrimination law.
There are a number of reasons why discrimination on the basis of criminal record is an issue for employers to address.
Firstly, there are a sizeable number of people with criminal records in our community, many of them seeking, or in, employment. At least 30,000 adult offenders are being returned to the Australian community from prison each year. However, the real number of people with a criminal record will be even higher than this, since many people with a criminal record have never been to prison.
Secondly, more and more employers are asking job applicants to undergo criminal record checks. While in some cases it is crucial that appropriate selection procedures are used to screen out people with certain criminal records, some employers automatically bar from employment anyone with a criminal record, regardless of the offence or the type of job.
This wastes human resources at a time when skill and labour shortages are becoming a key feature of the Australian workplace. It also means that people with criminal records are increasingly vulnerable to prejudice, which locks them out of the workforce.
The introduction of anti-discrimination and spent convictions laws are ways in which legislators have tried to protect people from discrimination when looking for a job. These laws provide a proper balance between the legitimate concerns of employers and people with a criminal record.
A basic principle of these laws is to enable an employer to refuse to employ someone if their criminal record is genuinely relevant to the essential requirements of the job. However, if a person’s criminal record doesn’t impact on the inherent requirements of the job, and that person is the best candidate for the job in every other way, these laws are designed to protect a person from being denied equal opportunity because of their criminal record. I hope that these Guidelines will assist employers to apply these principles in their own workplaces.
Dr Sev Ozdowski OAM
Human Rights Commissioner